High court to rule on po­lit­i­cal at­tire at polls

Austin American-Statesman - - FRONT PAGE - By Chuck Lin­dell clin­dell@states­man.com

The U.S. Supreme Court an­nounced Mon­day that it will de­ter­mine whether states, in­clud­ing Texas, can ban the wear­ing of po­lit­i­cal mes­sages on but­tons, T-shirts and other cloth­ing by vot­ers while they are inside polling places or within an es­tab­lished dis­tance from the entrance.

The case arose out of Min­nesota, where Andrew Cilek was blocked from cast­ing a bal­lot in 2010 be­cause he was wear­ing a but­ton in fa­vor of voter ID and a T-shirt with a tea party logo, a Gads­den flag and the words, “Don’t Tread on Me.”

Cilek sued, ar­gu­ing that the law should be over­turned be­cause it vi­o­lated his free speech rights and was too broad, re­quir­ing en­force-

ment based on the sub­jec- tive judg­ment of elec­tion of­fi­cials about what types of mes­sages have po­lit­i­cal over­tones.

Af­ter a fed­eral district judge and an ap­peals court up­held the law, Cilek turned to the Supreme Court, argu-

ing that Min­nesota’s sup­pres­sion of po­lit­i­cal speech was a mat­ter of na­tional im­por­tance, par­tic­u­larly be­cause nine other states sim­i­larly ban po­lit­i­cal ap­parel in and near vot­ing booths, in­clud­ing Texas.

“Po­lit­i­cal mes­sages can be found ev­ery­where if one looks hard enough,” Cilek’s lawyers told the Supreme Court. “It is no stretch to think that some vot­ers may be chilled from go­ing to the polling place if do­ing so could sub­ject them to crim­i­nal and civil penal­ties at an elec­tion judge’s whim.”

On Mon­day, the Supreme Court agreed to hear the case. Oral ar­gu­ments have not been sched­uled, but a rul­ing is ex­pected be­fore the court’s term ends in late June or early July.

The case has drawn in­ter­est be­cause, in ad­di­tion to the 10 states that ban cloth- ing and but­tons with po­lit­i­cal mes­sages, ev­ery state lim­its po­lit­i­cal ac­tiv­ity in some man­ner in and near polling places.

Since 1987, Texas has barred the wear­ing of a “badge, in­signia, em­blem or other sim­i­lar com­muni- cative de­vice” that re­lates to a can­di­date, bal­lot mea­sure, po­lit­i­cal party or the way an elec­tion is run. The area of the ban be­gins 100 feet from the polling place door. Vi­o­la­tors can be charged with a Class C mis­de­meanor, which car­ries a fine of up to $500 but no jail time.

Texas elec­tion judges are en­cour­aged to ask vot­ers “to cover up, change or turn inside out a T-shirt ex­press­ing pref­er­ence for a politi- cal can­di­date, mea­sure or party,” said Sam Tay­lor, spokesman for the Texas sec­re­tary of state’s of­fice.

All Travis County early vot­ing sites and most elec- tion day polling places have Demo­cratic and Repub­li­can elec­tion judges who jointly

de­ter­mine what dis­plays vi­o­late the re­stric­tion on po­lit­i­cal mes­sages on cloth­ing, said Travis County District

Clerk Dana DeBeau­voir. “It just keeps things hap

pier that way,” she said. Ask­ing vot­ers to com­ply with the law is rarely a prob- lem, said Michael Winn, Travis County’s di­rec­tor of elec- tions. When con­fronted by an elec­tion judge, most will re­move a cam­paign but­ton, zip up a jacket or re­v­erse their T-shirt to hide its mes­sage. Oth­ers will choose to use mask­ing tape or dis­pos- able pa­per cover-ups, sim­i­lar to a cape, that are supplied to vot­ing lo­ca­tions, he said.

Once vot­ers are be­yond the 100-foot marker out­side the polling sta­tion, they’re free to dis­play the po­lit­i­cal mes­sage again, Winn said.

Of­fi­cials from Min­nesota and other states that bar po­lit­i­cal mes­sages say they should be able to en­force laws that pro­mote neu­tral­ity and pre­serve deco­rum in the polling place.

The 8th U.S. Cir­cuit Court of Ap­peals agreed when it

up­held Min­nesota’s law in Fe­bru­ary, rul­ing that the re­stric­tion helped pro­tect vot­ers from con­fu­sion and im­proper in­flu­ence while pre­serv­ing the in­tegrity of the elec­tion process.

The 5th U.S. Cir­cuit Court of Ap­peals, which in­cludes Texas, has weighed in as well, up­hold­ing a sim­i­lar Louisiana law in 1993. Al­though

the law sin­gled out po­lit­i­cal speech — a type that is vig­or­ously pro­tected by the First Amend­ment — the re­stric­tions al­lowed Louisiana to cre­ate “an en­vi­ron­ment free from in­tim­i­da­tion, ha­rass­ment, con­fu­sion, ob­struc­tion and un­due in­flu­ence,” the court said.

How­ever, courts in Ari­zona and Ore­gon have tossed out sim­i­lar laws, with the Ore­gon Court of Ap­peals rul­ing that pas­sive dis­plays in the polling place do not co­erce or im­prop­erly in­flu­ence other vot­ers.

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